Medicaid Improvement Act signed by Governor Murphy

On July 12th we reported that a bill to improve and streamline the Medicaid application process was on the Governor’s desk. The bill was signed recently. Here’s the NJ Bar Association’s press release. Lauren Marinaro worked along with other colleagues in NJ NAELA to help get this bill passed.

This new law (S-499/A4569) is a good start towards evaluating and implementing procedures that can improve the experience that the public has when they need to apply for Medicaid benefits for long-term care. As regular readers of this blog know, applying for MLTSS is often a harrowing experience and applicants encounter many frustrating proof requirements that can be difficult if not impossible to meet.  The bill appoints a Medicaid eligibility ombudsperson to receive complaints, as well as liberalizes requests for more time to retrieve documents in the application process.

Look for more updates here on the Murphy administration’s implementation of this new law!

For advice on MLTSS Medicaid applications and appeals, call us at … 732-382-6070

Marinaro secures Court reversal of Medicaid denial where the proof required by DMAHS just didn’t exist

The burden to prove eligibility for Medicaid rests with the applicant, but sometimes, the agency just refuses to accept the evidence they are given. This is demonstrated in a recent New Jersey case in which a denial of benefits was reversed by the Appellate court. The decision is “not approved for publication ,” which means it doesn’t establish a precedent that’s binding on other courts, but it does provide an interesting view of what can happen in a case. L.A. vs DMAHS decision

L.A and her husband established a revocable living trust for their own benefit, and transferred their house into it. Their Social Security numbers were associated with this trust. An attorney wrote the trust. The Asset Schedule  at the back of the Trust document wasn’t filled out, so nothing was shown as to the assets that were placed into the trust. Some years later, in 2012, the trustees transferred the property out of the trust into the names of L.A. and her husband. In 2017, the couple terminated the Trust — which held no assets and apparently no longer had any purpose —  and transferred the house into L.A.’s sole name. Later, a Medicaid application was filed for L.A. They didn’t disclose the Trust when they provided the 60-month look-back documents. For the look-back, one must submit records of all assets held within the prior 60 months. As noted, the Trust had not held any assets during the look-back period. The agency reviewed the Deed and asked for the Trust records. The applicant submitted the trust document, the trust termination document, and a letter from their attorney which stated that the only asset that was ever in the Trust was the house. As noted above, Schedule A to the trust was blank, so no assets were listed on the Trust. The application was denied for “failure to submit required verifications” of the assets in the trust. L.A. requested a fair hearing appeal before the Office of Administrative Law (OAL).

At the hearing before the Administrative Law Judge (ALJ), the attorney who wrote the trust testified in accordance with the letter he had written for the application, and explained that the annexed Schedule was left blank because it called for information not applicable to the situation. Both he and L.A.’s husband testified that the house was the only asset that was ever in the Trust. Tax return evidence was submitted which did not show income from any trust assets.  The ALJ concluded that they were credible, but that the explanation about the blank schedules was inadequate and that plaintiff had indeed failed to submit the “required verifications” to establish Medicaid eligibility, and upheld the denial of benefits. The DMAHS adopted that decision, and L.A. appealed, represented by our Firm. Essentially, the Final Agency Decision stood for the proposition that even when there is no proof of assets, the agency may presume that they exist, and may deny eligibility for failure to prove otherwise.

On appeal, the court reversed, ruling that the final agency decision was not supported by the record. An administrative agency must base its decision on the “substantial credible evidence” in the case record, and the appellate court can overrule an agency decision if it is based on “findings that are contrary to the record.”  The court noted that the agency “reviewed the application with skepticism” despite the explanations,  and despite that information, “speculated” that additional assets were in the trust, leading to a situation in which “L.A. was required to produce information that simply did not exist” The Court reversed the denial, and held that “L.A. supplied all the necessary information for review of her application, and that her benefits should not have been denied because of the omission” of evidence that simply does not exist.

The Medicaid application process is a minefield with many traps for the unwary. As individuals grow older they need to always be looking to the future when they set up their financial arrangements, maintain their paperwork and handle their accounts and trusts, because things can turn on a dime and it just might become necessary to prove one’s eligibility for Medicaid. We’re here to help at every step of the way.

 

Call for advice and representation concerning Medicaid planning, applications and appeals ……. 732-382-6070

Designating your representative can prevent a fight over your remains

I have been saying for years that taking the time to put things in order in proper legal documents can save a lot of headache and money in the long run. “Careful planning can prevent a crisis” has been one of my professional mottos for many years now. New Jersey has a statute that allows a person to sign a document that designates a Funeral and Disposition Representative who has authority to make the decisions about final disposition of the body at death. A person can write these instructions in a Last Will and Testament or can sign a separate document and provide it to whoever might need to know. A new court decision called In the Matter of Estate of John Travers Jr. Travers App Div tackles the thorny problem of who is entitled to make those decisions for a person who died without a Will and without any written designation.

John Travers, Jr.,  died without any written instructions concerning his remains. He had no Will. He was single and had no children. His parents survived him, but they were divorced  They disagreed over what should happen — the father believed that his son should be buried, but the mother believed that his remains should be cremated. . The court noted that under the statute, the priority would be given to (1) spouse if any; (2) majority of the adult children if any, and then (3) the surviving parents. However, the statute said nothing about what to do when there is a dispute between the parents, who are the equally-situated next-of-kin.

The Appellate Division decided that the Legislature would want the decision to be as much in accordance with the individual’s preferences as a court could discern . Here, he had failed to make his wishes known, but there was evidence that he had a closer relationship with his father at the time of his death. The Court decided that the father was therefore in a better position to determine what his son’s wishes would be. Another factor that impressed the Court was that the father was likely to be appointed administrator of the estate and would also likely pay for all disposition arrangements himself since his son had few assets.

Family planning is full lifetime planning. Call us for individualized assistance and solutions ……. 732-382-6070

Beauty and pleasure of growing old with a positive attitude

New York Times writer John Leland wrote a marvellous, lengthy article that was published by the Times on December 31st. Three years ago, he began following the life activity of six New Yorkers who are in their 90’s. I just loved the article and wanted to give it a “shout-out” here. Click HERE for link to read the piece for yourself. One woman told him, “What keeps me going is when you’re lively. You’ve got to be lively.You can’t be an old beckyhead.” I’m not sure what that word means, but she found a new romance at the nursing home where she must live — another resident who is also in his 90’s.

I wrote this song in honor of people like these. I call it “Two O’Clock.”

“This nursing home’s a lovely place, I walk the halls with style and grace. My sweaters match my pants and scarf. A nice red bracelet tops it off.

“They help me dress, they help me groom. I lose my way, can’t find my room. At dinnertime, they come for me. They bring me cookies with my tea.

“You think I’m just like her, or her. Aged body, mind a blur. But I’m still here, please don’t forget: I was a dancer. I’m not gone yet.

I once was up there on the stage, my name in lights on Style page. I leapt, I whirled, was caught mid-air, a bird in flight, such brilliant flair! And I performed in many halls, adored the thrill of curtain calls. I had such fans, they followed me, from town to town and big cities.

“Now every day is just the same. I can’t remember my last name. And sometimes when they look at me, I wonder what it is they see, BUT!! Two o’clock is time to dance! I’m in the limelight, it’s my chance,  to whirl, to reach, to take a bow, I was a dancer, I’m still here now. Yes two o’clock it’s time to dance, and I’m still here, it’s still my chance…  to whirl, to reach to take a bow, I AM a dancer, I’m still here now.”

 

Call for elder care planning for a good old age … 732-382-6070

 

 

Navigating the Coordination of Medicaid benefits with other benefits

Generally speaking, the Medicaid program is the payor of last resort. If an individual is eligible for Medicare as his or her primary health insurance, Medicare would be the primary payor for medical needs, and Medicaid would become the secondary payor for any remainder. If an individual maintains a “medi-gap” insurance policy, that policy would be secondary and Medicaid would be in third place. When it comes to paying for long-term nursing home care (or assisted living or home care), Medicare and most Medi-gap policies do not pay for it, so Medicaid becomes the primary payor. If an individual has a long-term care insurance policy, Medicaid would generally pay the remainder of cost, at the Medicaid rate, after the benefit provided by the LTC policy.

Interested in digging deeper into this coordination of benefits? The Centers for Medicaid and Medicare Services has published an excellent, user friendly guidebook. Enjoy!

Call us about asset protection planning, Medicaid eligibility and Fair hearings for denials of Medicaid benefits … 732-382-6070